Lubin, Mitchell A.

English

University of Miami School of Law

University of Miami Law Review Volume 28 Number 1 Article 13 10-1-1973 "The Right, Justice and Welfare of the Purchasing and Consuming Public"? -- No Liability for Breach of Warranty for Defective Secondary Container Mitchell A. Lubin Follow this and additional works at: https://repository.law.miami.edu/umlr Recommended Citation Mitchell A. Lubin, "The Right, Justice and Welfare of the Purchasing and Consuming Public"? -- No Liability for Breach of Warranty for Defective Secondary Container, 28 U. Miami L. Rev. 246 (1973) Available at: https://repository.law.miami.edu/umlr/vol28/iss1/13 This Case Noted is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact library@law.miami.edu. UNIVERSITY OF MIAMI LAW REVIEW [Vol. XXVIIIthe like. The meaning of these concepts necessarily varies withthe experience, outlook, even idiosyncracies of the person de-fining them. Although we have assumed that obscenity doesexist and that we "know it when [we] see it," we are manifestlyunable to describe it in advance except by reference to conceptsso elusive that they fail to distinguish clearly between pro-tected and unprotected speech.4"The new standards raised in Miller, whether good or bad, leave questionsunanswered. The present composition of the Court indicates that forth-coming decisions, which are needed to resolve the conflicts, will probablyimpose strict regulations on obscenity. Hopefully, the Court, in attempt-ing to clarify these issues, will remember that the Constitution requiresthat the regulation of obscenity "conform to procedures that will ensureagainst the curtailment of constitutionally protected expression, whichis often separated from obscenity only by a dim and uncertain line.""MITCHELL R. BLOOMBERG"THE RIGHT, JUSTICE AND WELFARE OF THE PURCHASINGAND CONSUMING PUBLIC"?-NO LIABILITY FORBREACH OF WARRANTY FOR DEFECTIVESECONDARY CONTAINERThe plaintiff purchased a carton of Coca-Cola from a grocery storeoperated by the defendant Winn-Dixie Stores, Inc., Florida. When theplaintiff lifted the carton from the display rack of the store, the bottomof the carton allegedly failed and as a result, one bottle dropped to thefloor, broke and caused injury to the plaintiff. Defendant, Winn-Dixie,admitted the purchase and the fact that the drinks were bottled, packagedand supplied to it for retail sales by the co-defendant, Coca-Cola Bot-tling Company of Miami. Coca-Cola denied all applicable elements ofthe complaint. The trial court granted defendants' motions for directedverdict on the counts of implied warranty and submitted the case to thejury only on issues of negligence. The jury returned a verdict for thedefendants and final judgment was entered. On appeal, the DistrictCourt of Appeal, Fourth District, held, affirmed:' There is no warrantyof merchantability by the bottler in favor of a remote buyer as to thecarton.2 Schuessler v. Coca-Cola Bottling Co., 279 So. 2d 901 (Fla. 4thDist. 1973).43. Paris Adult Theatre I v. Slaton, 93 S. Ct. 2628, 2647 (1973) (dissenting opinion)(citations omitted).44. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66 (1963).1. Affirmed only in respect to the issue of extension of implied warranty to manufac-turer. Judgment as to defendant, Winn-Dixie Stores, Inc., was reversed and remanded.2. There was no testimony which indicated who actually manufactured the paperCASES NOTEDAlthough the contemporary evolution of the law of products liabil-ity rests on the various foundations of negligence, implied warranty andstrict liability,' the law in Florida may be traced to the use of contractwarranty principles as a basis of recovery.4 For many years in Florida,no recovery for breach of implied warranty of fitness was allowed with-out privity between the parties (Florida courts often do not distinguishbetween fitness and merchantability)." The requirement of privity waseventually eliminated in a case where a manufacturer of food productswas held liable for injuries sustained by a consumer.' Once the impliedwarranty of merchantability was extended to the manufacture of foodproducts, the responsibilities of retailers in the absence of privity tookhold.7 The citadel of privity has weakened in Florida," as it has nation-ally under the great weight of a vast number of court decisions.'Many jurisdictions have extended the theory of implied warrantybeyond the traditionally strictly confined areas of food and drink forhuman consumption to include animal food and products intended forbodily use such as cosmetics. The implied warranty of merchantabilityapplicable to products sold by the retailer for human consumption wasextended to include the bottle as well as its contents in Canada DryBottling Co. v. Shaw."° However, in Florida, the first such extension ap-peared in Florida Coca-Cola Bottling Co. v. Jordan," and involved thecontainers of products for human consumption. This rule was applied tomanufacturers, in Renninger v. Foremost Dairies, Inc., which held thatcarton in which the bottles were packaged. Testimony merely revealed that Coca-ColaBottling Company supplied its co-defendants with Coca-Cola bottled, packaged and readyfor retail sale.3. W. PROSSER, LAW OF TORTS § 96, at 641 (4th ed. 1971) [hereinafter cited as PROSSER].4. Ausness, From Caveat Emptor to Strict Liability: A Review of Products Liability inFlorida, 24 U. FrA. L. RaV. 410 (1972) [hereinafter cited as Ausness].S. Smith v. Burdine's, Inc., 144 Fla. 500, 198 So. 223 (1940). Plaintiff suffered injuriesafter using a brand of lipstick purchased in reliance on a saleswoman's assurance that theproduct was safe. The court held that the employee's conduct gave rise to an implied war-ranty of fitness and that the plaintiff was allowed to recover from the retailer since theparties were in privity. For the definitions of warranties of fitness and merchantability, seeUCC §§ 2-314, 2-315.6. Blanton v. Cudahy Packing Co., 154 Fla. 872, 19 So. 2d 313 (1944). See also Sencerv. Carl's Markets, Inc., 45 So. 2d 671 (Fla. 1950).7. Ausness, supra note 3, at 414.8. Blanton v. Cudahy Packing Co., 154 Fla. 872, 19 So. 2d 313 (1944).9. PROSSER, supra note 2, § 97, at 655.10. 118 So. 2d 840 (Fla. 2d Dist. 1960) [hereinafter referred to as Shaw]; Foley v.Weaver Drugs, Inc., 177 So. 2d 221 (Fla. 1965), aff'g 172 So. 2d 907 (Fla. 3d Dist. 1965).In Foley the court suggested that Jordan stood for an extension permitting suit against boththe bottler and the retailer. The court added, however, that it would not at that time extendthe doctrine of implied warranty to all containers of food, but the bottle and its contentswere so closely related that it was difficult if not impossible to draw a distinction.11. 62 So. 2d 910 (Fla. 1953) [hereinafter referred to as Jordan]. It held that the bottlerof a beverage intended for consumption impliedly warrants to the ultimate consumer thatthe beverage is reasonably fit for that purpose. In Blanton v. Cudahy Packing Co., 154Fla. 872, 19 So. 2d 313 (1944), the court stated, "[t]he implied warranty theory of liabilitycomports with the general trend of the best reasoned cases." Id. at 876, 19 So. 2d at 316. SeeAusness, supra note 3, at 415.1973 ]UNIVERSITY OF MIAMI LAW REVIEW [Vol. XXVIIIa "purchaser of a bottle of milk is entitled to rely on the bottler to theextent that the container in which the product is packaged will be reason-ably fit for the purpose for which it was intended."'1 2 However, in thatsame year, the Supreme Court of Florida, in Foley v. Weaver Drugs,Inc.," refused to extend implied warranty liability to retailers for injur-ies caused by defective containers. The court concluded that public pol-icy did not dictate holding the retailer to the same liability for the mer-chantability and fitness of the container of food products as is imposedupon him for the food contents. Foley modified Shaw as it applied toretailers although the court did nct decide whether the bottler was liablefor injuries from the defective container.In 1967, in Gay v. Kelly, 4 the First District held that a secondarycontainer, a cardboard carton, was to be treated as a product for ulti-mate bodily use, and that privity was not a requirement for recoveryagainst the manufacturer. It is important to note that the court in Foleyreached its decision without the benefit of Florida Statute § 672.2-314(1967), which became effective approximately two years subsequent tothe decision. Section 672.2-314 contains the following provisions whichdictate the liability of the retailer in the present case:(1) ... A warranty that the goods shall be merchantable isimplied in a contract for their sale, if the seller is a merchantwith respect to goods of that kind....(2) Goods to be merchantable must be at least such as:(e) Are adequately contained, packaged, and labeled asthe agreement may require;The statute imposes a warranty of merchantability on the retailerwhich applies not merely to the product which is the intent of the pur-chase, but also to the container. Whether the product is adequately con-tained and packaged within the provisions of the statute would rest onits suitability and intended function at the time of purchase.Thus, the law seemed to be clearly established as indicated by thecourt in Reese v. Florida Coca-Cola Bottling Co.," which, in consider-ing the Shaw and the Renninger decisions, stated thatif the bottler or manufacturer of a product intended for humanconsumption packages its product in a glass container and theproduct is such that it cannot be ordinarily consumed without12. 171 So. 2d 602, 604 (Fla. 3d Dist. 1965) [hereinafter referred to as Renninger](recovery against a bottler was granted).13. 177 So. 2d 221 (Fla. 1965) [hereinafter referred to as Foley].14. 200 So. 2d 568 (Fla. 1st Dist. 1967). The facts here are almost identical to those inSchuessler. The court stated that Florida law had not yet reached the point where theprivity has been deemed unnecessary in all suits based upon implied warranty. It concludedthat privity no longer is required in an implied warranty suit by a consumer against amanufacturer. However, the court concluded that the defendant must be proven to bethe manufacturer in question.15. 256 So. 2d 392 (Fla. Ist Dist. 1972).CASES NOTEDat the same time handling and using the container itself, thenthe manufacturer impliedly warrants that the container isreasonably fit for the purpose for which it is intended. Undersuch circumstances, if a defect is shown to be the cause of thecontainer breaking or exploding, then liability for any damagessuffered by a purchaser of the product may be imposed on themanufacturer or bottler.16In Schuessler, the Fourth District was faced with the question ofwhether a bottler impliedly warrants the merchantability of a secondarycontainer to a remote buyer. Distinguishing the decision of its sister courtin Gay v. Kelly," upon the same question, the court in Schuessler stated:"It would seem to us to be more sound to predicate the bottler's respon-sibility on the reasonable needs of the consumer rather than the bottler'sstatus as a manufacturer."' 8 The Schuessler court had the opportunity touse Gay v. Kelly, a case as nearly on point as one could hope for, to stepforward and extend the holding to the instance where the bottler did notnecessarily manufacture the carton. Instead, the court adhered to thereasoning of the 1944 Supreme Court of Florida in Blanton v. CudahyPacking Co. 9 which stated:The rationale of the implied warranty theory of liability is ineffect that the right of recovery by injured consumers oughtnot to depend upon or turn on the intricacies of the law ofsale nor upon the privity of contract, but should rest on rightjustice and welfare of the general purchasing and consumingpublic.The Schuessler court, echoing the rationale applied almost thirtyyears ago in Blanton, concluded that:(1) the secondary container was readily subject to examina-tion for soundness by the buyer who, therefore, had no need torely on the bottler;(2) the carton was provided as a convenience only, and theconsumer was required to handle or use it in order to use theconsumable product, and(3) the alleged defect was not of the type which as a matterof common experience was more likely than not to have origi-nated before the product left the bottler's possession.2°The Schuessler court,21 relying upon the logic and reason promul-gated by the pre-code decision in Blanton,2 reaches a conclusion which16. Id. at 393.17. 200 So. 2d 568 (Fla. 1st Dist. 1967).18. 279 So. 2d at 904.19. 154 Fla. 872, 19 So. 2d 313, 316 (1944) [hereinafter referred to as Blanton].20. 279 So. 2d at 904.21. Id. at 901.22. Blanton v. Cudahy Packing Co., 154 Fla. 872, 19 So. 2d 313 (1944).19731UNIVERSITY OF MIAMI LAW REVIEW [Vol. XXVIIIthe 1944 court refused to reach under the same rationale. It seems thatthe Schuessler court has stepped backwards into the annals of legal his-tory and has resurrected an already buried theory of caveat emptor2The court's preference of subjecting the consumer, and possibly the re-tailer, to the burden of dutifully inspecting the product's container ap-pears to be an impediment to the development of the case law in Floridawhich has established a theory of implied warranty for food and itscontainers.24In Schuessler the court does not indulge in a discussion of factorswhich might prove crucial to reaching an enlightened decision. Thebottled drinks were more than likely contained not in a makeshift car-ton, but one specifically designed and equipped to enable a consumerto carry six bottles of the beverage conveniently. Both the bottles andthe carton were probably displayed as a unit and priced as a unit, with-out a separate charge being made for the carton.From the bottler's perspective, the carton was probably a market-ing device which inevitably stimulated the sales of six bottles at a time.If these facts had been inquired into and had been ascertained as statedabove, a more correct holding would have been that the manufacturerimpliedly warranted that the carton was fit for use as a receptacle tocarry the bottled drinks. From the consumer's perspective, the only oneconsidered by the court, the carton was a convenience. But the purchaserof a "six-pack" of soda becomes the owner of the carton as well as ofthe beverage since the store sells the carton as a unit with the beverage.The fact that it is the container rather than the product inside whichcauses injury does not make the injury any less a result of the manufac-turer's breach of warranty. This reasoning should be extended to situ-ations in which the secondary container, provided by the manufacturer,is inadequate.In Florida, a finding that a manufacturer, as distinguished from theretailer of a product, may be held liable for breach of implied warrantyis made without regard to whether the plaintiff is in privity of contract.This is true even for a product that is neither a dangerous instrumental-ity nor a foodstuff.2 Surely if a court is able to find the manufacturerliable for injury resulting from a bottle exploding in a "six-pack" car-ton carried to the supermarket check-out counter,2 7 then the manufac-turer should be equally liable where the carton is latently defective andinjury results.23. Compare Ausness, supra note 3, at 410, with PROSSER, supra note 2, § 98, at 657,and UNIFORM COMMERCML CODE §§ 2-314, 2-315.24. Reese v. Florida Coca-Cola Bottling Co., 256 So. 2d 392 (Fla. 1st Dist. 1972);Renninger v. Foremost Dairies, Inc., 171 So. 2d 602 (Fla. 3d Dist. 1965).25. Vandercook & Son, Inc. v. Thorpe, 344 F.2d 930 (5th Cir. 1965) ; Blanton v. CudahyPacking Co., 154 Fla. 872, 19 So. 2d 313 (Fla. 1944).26. Manhiem v. Ford Motor Co., 201 So. 2d 440 (Fla. 1967).27. Reese v. Florida Coca-Cola Bottling Co., 256 So. 2d 392 (Fla. 1st Dist. 1972).CASES NOTEDWhether the alleged defect was of such a nature, that, as a matterof common experience, it was more likely than not to have originatedbefore the product left the bottler's possession is a question of fact. Ulti-mately the court's decision is one of public policy-who should bear theburden of defective secondary containers, the manufacturer or the con-sumer.28 Public policy, the right, justice and welfare of the general pur-chasing and consuming public, demands that the manufacturer be liablefor breach of implied warranty of a secondary container when the injuryproximately follows from such defect. The functional distinctions be-tween primary and secondary containers, in this age which has witnessedan enormous revolution in the containerization process, should not bedeterminative of liability. Whether it is a defect in the beverage bottleor the beverage carton that causes injury is an artificial distinction whichspeaks of glass and cardboard and not of reason. Perhaps only after con-sideration of the manufacturer's purpose in creating the secondary con-tainer and its functions to both the manufacturer and consumer, shouldliability be affixed.MICHAEL A. LUBINTHE RIGHT OF A HUSBAND OR A MINOR'S PARENTTO PARTICIPATE IN THE ABORTION DECISIONPlaintiffs, a married woman, an unmarried minor female, and threeFlorida-licensed physicians specializing in family medicine' brought aclass action for declaratory and injunctive relief in the United StatesDistrict Court for the Southern District of Florida against officials ofthe State of Florida, attacking the constitutionality of Florida Statutessection 458.22(3),2 which required the written consent of husbands or28. It should be noted, however, that in Schuessler, since a deep-pocket retailer was heldliable, the court was not faced with a policy decision which would place the burden of theloss on the consumer.1. The Supreme Court in Doe v. Bolton, 93 S. Ct. 739 (1973) (the companion case toRoe), held that a physician consulted by pregnant women had standing to sue as one againstwhom an abortion statute "directly operate[s] in the event he procures an abortion thatdoes not meet the statutory exceptions and conditions." Id. at 745. The Court found a suf-ficiently direct threat of personal detriment to a doctor in this situation, and held that heshould not be required to undergo criminal prosecution as a sole means of seeking relief.Coe v. Gerstein, No. 72-1842 (S.D. Fla. Aug. 14, 1973) follows Doe in this respect.2. FLA. STAT. § 458.22(3) (Supp. 1972) [hereinafter the spousal or parental consentrequirement]. The pertinent part of the statute is as follows:(3) WRITINGS REQUIRED.-One of the following shall be obtained by thephysician prior to terminating a pregnancy:(a) The written request of the pregnant woman and, if she is married, thewritten consent of her husband, unless the husband is voluntarily living apart fromthe wife, or(b) If the pregnant woman is under eighteen years of age and unmarried, in1973]

The Right, Justice and Welfare of the Purchasing and Consuming Public ? -- No Liability for Breach of Warranty for Defective Secondary Container

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The Right, Justice and Welfare of the Purchasing and Consuming Public ? -- No Liability for Breach of Warranty for Defective Secondary Container

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